Wednesday, November 18, 2015

Here are a few items which merit Grits readers attention, even if your correspondent has no time to dwell on them:

New Hires
Shakira Pumphrey, former staffer on criminal justice issues for Texas House Speaker Joe Straus, has taken a position as Policy Director of the Texas Criminal Justice Coalition. Meanwhile, Empower Texas has jumped into the criminal justice arena, hiring Lawrence B. Jones III to rein in overcriminalization and limit asset forfeiture. Congratulations to both!

Forensic sciences taken down a peg
News first broken on this blog that DNA mixture evidence involved subjective interpretation by technicians using non-standard methodologies and often dubious probability calculations has completed the circle begun with the publication of the 2009 National Academy of Sciences report, "Strengthening Forensic Science: A Path Forward." That document called into question the scientific basis for most forensic evidence but gave DNA a pass. Now we know that much of forensics in recent decades has been "pseudoscience," as the Boston Review this week put it. And DNA mixture evidence, as described recently by a Boston University quarterly, "has never been about achieving certainty. It’s
about partial matches, probabilities, big-time math, and a healthy dose
of judgment calls by forensic scientists." Except that's not how it was portrayed in court. Together, those two articles provide a good, quick, backgrounder on the nascent crisis, really crises, undermining the credibility, if not yet the status, of traditional forensic science.

Media, outrage, and 'vigilante justice'
The Dallas News asked its readers what they'd do to prevent wrongful convictions. One raised an issue which isn't discussed as much as it should be: "public outrage fueled by emotion and often biased media, not to mention
the mental stress of public officials, law enforcement and those
connected to that sector of society ... can factor in to what appears
in cases like this to seem like vigilante justice." Glad someone said it; glad they printed it. That's a common denominator in a large proportion of false convictions which result in exonerations.

Cry me a river: PDs grouse about federal consent decrees
The Washington Post and PBS Frontline examined major DOJ interventions at police departments in a story which finds our old pal Vanita Gupta called to account for agency actions taken years before she assumed control of the Civil Rights Division. C'est la vie. That's the job you signed up for, babe! I could nitpick a lot with this story. They complain about costs of DOJ intervention but how do you quantify the costs of a corrupt or excessively violent police department? Are we really going to say New Orleans would have been better off if the feds let them stew in their own problems? We heard a lot of similar complaints back in the day when Texas prisons reported to federal monitors under Ruiz vs. Estelle. But in truth, those reforms are why Texas' prisons never became the overcrowded hellholes one saw, for example, in California before federal courts ordered them to cut the prison population. The reality is, departments typically don't reach the point of requiring DOJ intervention until they're wallowing in a full-blown crisis they clearly can't manage on their own. DOJ is looking to make examples of the worst departments, not those which are merely bad or poor. So while I'm sure it's true departments under consent decrees must endure some excessive bureaucracy and waste during the remediation period, it's hard for me to feel too sorry for them.

20 comments:

Anonymous
said...

"...DNA mixture evidence involved subjective interpretation by technicians using non-standard methodologies and often dubious probability calculations has completed the circle..."

It bothers me, Grits, that you often (maybe probably unintentionally) insert the "technician" or "analyst" into a questionable practice of methodology discovered in the crime lab. For a large percentage of these "technicians" or "analysts", this is their first real professional job in a scientific setting. They're naive. They get paid to follow protocols. They follow orders. They are, more or less, robotic. They DO NOT write the protocols or perform the validation studies surrounding the protocols. They don't have the years of scientific experience to understand the large number of variables that must be considered to create these sometimes complex protocols (e.g. statistics).

If the protocols are "subjective" or "dubious", this is the fault of the Lab Supervisors, Lab Management, or Lab Directors (the people with the PhDs and MDs). Or, it could be argued that it is the fault of the accreditation agencies (ASCLD/LAB) that "sign-off" on these "dubious" or "non-standard" protocols. This weird belief that scientific protocols are picture perfect and that Lab Supervisors/Directors are infallible is warrantless. The people who are at the top of the food chain who have been around for the past 20 years, who watched the science progress, who know the complications, are responsible for the quagmire called "forensic science". It is the MDs and PhDs that educate and train the bench technicians and analysts -- to follow protocols. So if something goes wrong in the lab, let's not immediately scapegoat the analysts (or quickly dismiss Lab Management from fault).

Has anyone asked those FSC Members who operate DNA labs what they've done with their protocols in the past 5-10 years to proactively quench this predictably imminent conundrum? How are they training their analysts?

The technician is inserted into questionable practices, of course, because they're the ones implementing them. But the blame game is unproductive wherever one points the finger. This wasn't intentional, but that doesn't make it any less a clusterf#&k. And when a fix is settled on, it will be the technicians who must implement it.

As for the FSC members' labs, I don't think anyone was doing it right in Texas, that I've heard of. Most seemed to be following DPS' lead.

Also, that the protocols are "dubious" is the fault of the scientists - that it's "subjective" is the nature of the comparison. Mixtures require subjective interpretation. The stochastic threshold applied to CPI doesn't change that subjective element, it just limits the error which can derive from it.

As far as media coverage and public outrage is concerned, this isn't just an issue dealing with wrongful convictions. The same thing is true when it comes with certain crimes, whether rightfully or wrongfully convicted individuals face a huge uphill struggle once they are released primarily because of the way the media paints their picture.

The prime example is how society,lawmakers, and the criminal justice officials, treat sex offenders. These criminals are viewed as extreme threats and have to live under draconian conditions, along with their wives/husbands/children. The fact of the matter is that 97% to 99% (depends on which study you view) of these registered citizens will never commit another sex offense. You damn sure couldn't tell that from the laws and news coverage that they receive.

This is the American way, put your trust in your elected/appointed officials to deal with things fairly and believe everything they tell you. The same goes with the media. Hell, we have always had to have someone to hate and heap scorn upon right? Native Americans, African Americans, homosexuals and now, sex offenders. When, if ever, is our addiction to hatred going to stop?

"...The technician is inserted into questionable practices, of course, because they're the ones implementing them..."

NO, the technicians do not implement the protocols. They are the low man on the totem pole. They follow protocols, even if the protocols are problematic (if they want to keep their job, that is.)

Do you need an example of poorly written protocols being handed to the technicians that resulted in a wrongful conviction?

Raleigh, N.C. — A Durham man who spent nearly 17 years in prison for first-degree murder before his landmark exoneration last year is suing five former agents with the State Bureau of Investigation for their roles in his wrongful conviction.

In a lawsuit filed Tuesday in U.S. District Court in Raleigh, Greg Taylor claims the defendants "intentionally and in bad faith" misrepresented blood evidence against him knowing that it could result in his conviction and that the defendants "prevented, obstructed, impeded and hindered justice" by allowing it....Among those being sued is Duane Deaver, a blood-stain analyst who testified during the innocence hearing that prosecutors in Taylor's trial relied partly on a lab report that indicated blood was found in his SUV near Thomas' body.

The (lab) report, however, did not mention that a second test for blood was negative. The negative result was contained in more extensive, informal notes that the SBI kept filed away until Taylor's case came before the innocence panel.

"Because Deaver intentionally misrepresented evidence against Taylor, Taylor was imprisoned for 16 years, nine months and 28 days for a crime he did not commit," the lawsuit states.

(Defense Attorney) "But we do continue to wonder how Duane can be sued for this when he did not testify at Greg Taylor's trial nor did he have any control over what documents the SBI did or did not provide to the district attorney," Miller said.

Others being sued are Joseph Taub, another blood stain analyst; Mark Nelson, chief of the serology section of the SBI Crime Lab from 1986 to 2002; Ralph Keaton [now President of ASCLD-LAB !!!] the lab's assistant director in 1993; and Harold Elliott, the lab director from 1986 through 1995.

It was Nelson who sent a 1997 order to members of the lab's molecular genetics section, writing that if an initial test for blood or saliva is positive but confirmatory tests are not, they should say the evidence showed chemical indications for their presence.

Surprisingly, during the inquiry the serologist claimed that lab procedure did not require the reporting of negative confirmatory tests. And this was corroborated by the lab director: “SBI Director Robin Pendergraft defended Deaver’s work in Taylor’s case, saying he violated no SBI policies. She explained that SBI forensic analyst report positive test results indicating a substance is blood.

Nelson...went on to work for the U.S. Justice Department...

Deaver's testimony prompted an independent review of the SBI Crime Lab that found that analysts [plural] had frequently misstated or falsely reported blood evidence in about 200 criminal cases during a 16-year period ending in 2003.

Deaver was fired from his job in January.

The SBI said in March that it had found 74 additional cases in the 1990s in which blood evidence was mishandled.

The take away from this story -- Because the lab analysts were following written protocols (that the analysts didn't write), they got fired, they're blamed (in part) for a wrongful conviction, and are sued.

And these blood testing protocols are nowhere near as complicated and subjective as the statistics for mixed DNA that Texas is now facing.

So if we need to assign blame to get to the root cause analysis, so be it. The wrongfully convicted shouldn't pay to pay the price because some lab supervisor has sensitive feelings and can't be critically critiqued.

I have to assume that this is an impression, and not based information that you have gotten from anyone who works in any lab in Texas. Because I can state categorically that DNA laboratories outside of the DPS system do not follow DPS in any way, shape or manner. It is fair to say that some of the issues observed with the DPS laboratory were also observed in other laboratories. But this is because they were practices that were very broadly practiced by the vast majority (but not all) of DNA laboratories prior to publication of the 2010 SWGDAM guidelines.

It is incorrect to view DPS as the leader or driver of forensic science in Texas. That is not how the system has ever worked. And it is not how it works now.

@ 7:05, if "the issues observed with the DPS laboratory were also observed in other laboratories," does it matter who followed whose lead?

Should we feel better about your lab because you are responsible for your own mistakes and DPS' errors are independent? Should you get credit for being wrong by yourself?

DPS is the de facto "driver of forensic science in Texas" for one reason: Volume. On DNA mixtures, about half the cases statewide come from DPS. No other lab system comes close to that volume. Hell, DPS' Brady Mills is either the immediate or recently past president of the American Society of Crime Lab Directors! Given all that, to claim they're not a "leader" or "driver" of Texas forensics comes off to me as either disingenuous or myopic.

I'm interested...what are a couple of examples of the differences between DPS lab and your lab?

Which brings up a broader question, why don't all labs in Texas follow a single (published) protocol? For example, there are several presumptive tests for blood (Leucomalachite Green, Kastle-Meyer, Luminol) and there are 1001 different ways to prepare the reagents for these tests in the lab. Why couldn't all labs use the exact same test which is prepared from the exact same recipe?

Or, why couldn't all labs use a specific DNA kit? PowerPlex, Profiler Plus, Sinofiler, IDPlex (many,many more) each has their own protocols, internal controls and ladders.

Maybe each has kit has it's own advantages...but surely there is the "best" that all labs could use, no?

Protocols are driven by kits and instrumentation, which are manufacured by private companies. Governments labs must follow state and federal purchasing laws mean that different manufacturers must be allowed to compete for government contracts, providing that their product meet a justifiable minimum level of acceptability. Government purchasing rules prevent labs from all using the same kits, chemicals, or equipment. Which means that protocols will necessarily differ.

You lose points for citing Brady Mills' pedigree to conflate scientific authority.You also lose points for mentioning ASCLD as an originator to that authority.

As you know, ASCLD hosts ASCLD-LAB (Lab Accreditation Board), which is known to be a joke...http://gritsforbreakfast.blogspot.com/2012/03/is-ascldlab-crime-lab-accreditation.html

Moreover, Brady Mills probably shouldn't have that position at DPS because of his present association with ASCLD. DPS has legal responsibility for crime lab accreditation in Texas. But, if need be, ASCLD-LAB may be used as a surrogate for performing the crime lab audits (for a fee, of course.)

Sounds like a potential conflict-of-interest.

Sure DPS has volume, but that doesn't mean that they are providing the "best" science. It just means that when DPS' protocols are found to be flawed, there's a bigger mess to address (or cover-up).Has anyone ever asked if DPS should be the driver of forensic science in Texas, or has it been assumed, for simplicity's sake?

Which government purchasing rules? From your comment, it sounds like Lab "A" can use DNA kit "X" while Lab "B" can not use DNA Kit "X" because Lab "A" is already using it, per government purchasing rules.

I understand that the manufacturers must compete for state contracts. Is it safe to assume that all DPS labs use identical kits (versus some non-DPS county lab in South Texas)? I'd hate to think that scientific unity (or best practices) is hampered by bureaucratic red tape in purchasing laws.

And what about those presumptive tests that are created from scratch in-house? Do all DPS labs use Kastle-Meyer reagents (with the same recipe) as the standard presumptive test for blood, for example?

ASCLD and ASCLD/LAB are completely separate organizations. It is a common confusion. From the ASCLD website: "ASCLD is not an accrediting body. In the 1980’s ASCLD developed a standards subcommittee to evaluate the needs of the criminal justice system. This subcommittee eventually incorporated as a separate and distinct non-profit entity based in North Carolina and has the acronym ASCLD/LAB [usually pronounced azz-clad-lab by those in the profession]. You can visit their website at www.ascld-lab.org and find out more about the origins of this organization by selecting ‘About Us’ and ‘History.’ Due to our origins our acronyms are similar but we are completely separate organizations with independent Boards, missions and structure."

Also, DPS no longer accredits laboratories for Texas. That responsibility moved to the TFSC this year.

@6:22, as per 1:25, ASCLD is not ASCLD-LAB, and DPS no longer accredits TX labs. I guess you lose points there, huh?

And I did not cite "Brady Mills' pedigree to conflate scientific authority." I cited it in reaction to statements that DPS is not a "leader" in Texas forensics. When their labs handle half the state's cases and the DPS lab chief is a recent head of the American Society of Crime Lab Directors (again, NOT ASCLD-LAB), that implies more of a leadership role than our friend @ 7:05 suggested.

3:02 said, "But what it all boils down to is that none of these organizations is accountable for doing a slack-ass job."

Not true.

Accreditation for forensic science laboratories works the same as accreditation for other laboratories that provide calibration and testing services.

Laboratories contract with an approved accreditation body, which evaluates the laboratory against a recognized set of quality assurance standards. For forensic science laboratories that perform testing for Texas courts, accreditation bodies (such as ASCLD/LAB and A2LA) must be approved by the State of Texas. Previously, DPS was the state agency that approved accreditation bodies. Now it is the TFSC. The core standards that forensic science laboratories are developed by an international standards developing organization, and the specific set of standards (here ISO/IEC 17025) apply not just to forensic science laboratories but to all testing and calibration laboratories. In the future, the standards that forensic science laboratories will be accredited against will include standards developed through the NIST OSAC process, which will be nationally mandated standards specific to forensic sciences.

Accreditation bodies (such as ASCLD/LAB and A2LA) are themselves accredited against internationally recognized quality assurance standards for accreditation bodies. ASCLD/LAB and A2LA are accredited by IAAC, which is a regional accreditation cooperative for North and South America. Both ASCLD/LAB and A2LA are accredited against ISO/IEC 17011 international standards for organizations that provide accreditation services. These standards are not specific for the forensic science area, but are generally recognized international standards for accreditation bodies regardless of area.

Regional accreditation cooperatives must be recognized and approved to accredit accreditation bodies. ILAC is the international organization that approves them. Again, ILAC is not specific to forensic science laboratories, or even laboratories. ILAC covers laboratories, but also covers manufacturing, distribution, and an wide area of activities where international agreement upon quality assurance is recognized as being important.

So, the statement that none of these organizations is accountable is incorrect. These organizations function within a network of accountabilities and standards, some legislated and some not legislated but internationally accepted.

I believe you are stating that for a Lab to seek and maintain accreditation to a specific standard they contract with an accredited client manager who audits the lab.

While Client Managers must maintain accreditation their primary motivation is to grow and maintain their paying Client base. It is the individual labs that pay for their services. The client pays the client manager for the audit.

That's not the best system for accountability. There is an inherent conflict built into that relationship.

No where in your comment did you describe accountability. You described layer on top of layer of bullsh*t which, no doubt, some Texas Prosecutor will use when describing the qualifications of his next forensic "expert" on the witness stand.

Let me give you an example of "lack of accountability".

Per TFSC Report June 2012...On June 27, 2011, ASCLD-LAB issued a full assessment report containing 18 corrective actions, 15 of which were classified as Level 1 corrective actions, and 3 of which were classified as Level 2 corrective actions. "When ASCLD-LAB first accredited the laboratory in March 2006, the inspection report indicated that “responsibilities and authority [for the quality manager] were not clearly defined or understood...” This dynamic was still evident to a large degree during the Commission’s interviews in December 2011..."

Which means that for FIVE years nothing was done. Given that there are annual audits, it seems highly unlikely that the events leading to the 18 corrective actions ALL occurred within the year leading up to ASCLD-LAB's full assessment. Why didn't the audits find these same problems in 2007? What about the 2008 audits? 2009? 2010? Nope? Nothing? Really? Perhaps these auditors were committing fraud by creating audit reports wherein they reported "nothing to report here".

Again, I ask, who gets b*tch-slapped for failing to perform there accreditation duties from 2006 to 2011?Should IAAC be held accountable? Is there a name of the individual who was supposed to be watching these audits?

Maybe we should just blame the bench analyst, write them up, and remove them from case work (which is what happened). Maybe they should just be fired, because ASCLD-LAB doesn't interview analysts who have been fired (per ASCLD-LAB's policy). No root cause analysis to be done.

Miraculously, even though TFSC only (used to) accepts complaints regarding accredited crime labs, not a single time has the ASCLD-LAB agency been faulted -- Rather, held accountable for their catastrophic failures as an accreditation agency.

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